On the 20th November, 2012, the Gardaí (the Irish police force) executed a search warrant, obtained pursuant to s. 26 of the Misuse of Drugs Act, 1977/84, at a warehouse in West Dublin. On entering the property the Gardaí found numerous cannabis plants amounting to €940,800.00 market value, and in a small room on the premise, a Vietnamese woman (P.). She was arrested on suspicion of an offence contrary to s.15 of the Misuse of Drugs Act 1977/84 - that is, possession of a controlled substance with intent to supply. While she was detained, P. gave a statement through a translator that she had been there a month and was not allowed to leave the building. Her tasks were to turn the heat lights on and off at specified times. Supplies of food were brought to her by men who had frightened her. She added that she had been led to believe that she would be employed as a cleaner or a child minder on arrival to Ireland from Vietnam. During the course of her detention, arresting officer Sergeant Fitzpatrick noted to both P.’s lawyer and the Chief Superintendent (the 1st named respondent) that she was a possible victim of trafficking in human beings.
On November 22nd, 2012, P. was charged with two offenses under the Misuse of Drugs Act 1977/84. The Director of Public Prosecutions (DPP) was directed to proceed with the charges on February 11th, 2013, including a charge relating to cultivation of cannabis and a charge under s.15A of the Misuse of Drugs Acts as amended, being possession with intent to supply of cannabis to a value greater than €13,000. The latter charge carries a presumptive mandatory penalty of not less than ten years imprisonment.
It is important to note that in this jurisdiction, it was only in the power of a Garda officer not below the rank of Superintendent of the Garda National Bureau of Immigration to identify a victim of human trafficking, according to the administrative arrangements drawn up by the Department of Justice and Law Reform, established in 2008.
Between the dates of December 6th, 2012 and October 23rd, 2013, P.’s lawyer sent seven letters, including two psychiatric reports referencing the post-traumatic stress disorder P. was diagnosed with as a result of the ordeal of being trafficked, to the Chief Superintendent, as well as two letters to Sergeant Fitzpatrick asking them to identify P. as a victim of human trafficking. The letters were met with timely responses, but with no concrete decisions on the matter. Each response referenced an ongoing investigation, yet provided no details on the basis of said investigation. In one of the letters, the lawyer highlighted the importance of the identification of P. as a victim of human trafficking for the following reasons: 1) it would give her the ability to obtain an address and identification documents which were necessary in applying for bail; 2) it would provide her access to assistance from Health Service Executives Anti-Human Trafficking Team; 3) it would assist her in persuading the DPP that it would not be in the public interest to prosecute her under criminal charges; and 4) it would allow her to pursue returning home.
As a result of the delay, the applicant issued a judicial review, seeking reliefs as well as damages. The reliefs included:
a) An order of certiorari quashing the decision of the first named respondent not to identify P. as a victim of trafficking in human beings;
b) An order of mandamus requiring the first named respondent to determine in accordance with the law the applicant’s application for identification as a victim of trafficking in human beings;
c) A declaration that Articles 40.4.1 and 40.3 of the Constitution, Article 4 of the European Convention on Human Rights 1950 (‘ECHR’), section 3 of the ECHR Act 2003, Article 5 of the Charter of Fundamental Rights of the European Union (‘CFREU’), Directive 2011/36/EU, and/or the principle of good administration in EU law require the first named respondent to observe fair procedures - including the requirements to act within a reasonable time and to give reasons for decisions - in respect of the applicant’s application for identification as a victim of trafficking;
d) A declaration that the third named respondent has failed to bring into force the laws, regulation and administrative provisions necessary to comply with the Directive 2011/36/EU and in particular Article 11 and 12 thereof;
e) An order pursuant to Order 84, Rule 20(8) staying, until the determination of the proceedings herein, the applicant’s trial in the Circuit Criminal Court in respect of charges numbered 13304999, 13305005, 13572963 and 13572971 inclusive as set out in the second named respondent’s Book of Evidence entitled Director of Public Prosecutions v. P. and duly returned for trial on the 23rd May 2013 and pending before the Circuit Criminal Court;
f) An injunction restraining the second named respondent from taking any further steps in the prosecution aforesaid until the determination of the proceedings herein;
In his defense, the Chief Superintendent denied all allegations of breach of rights and said that the delay in the process is the applicant’s own fault, in that she had been untruthful and vague in her statements. This was based on her denial of ever having travelled outside Vietnam, when the investigations of the Gardaí showed that she lived in Germany and applied for asylum twice, under different names and dates of birth. He made a motion to dismiss on the basis that the judicial review application was founded upon material fraudulent non-disclosure, was premature and was effectively preventing any meaningful progress being made in the criminal proceedings.
After hearing the facts, as well as looking at submissions from the amicus curiae, Justice O'Malley in the High Court concluded that P. did have locus standi to seek relief as she did not have to establish that she was entitled to the status she was seeking in order to claim an entitlement to proper procedures. It was acknowledged that the non-disclosure by P. of her illegal presence in Germany was not sufficiently ‘clear and compelling’ grounds for declining to consider her status as a victim of human trafficking. In addition to that, the Court indicated that a non-disclosure of P’s past needed to be seen in the context of her being in a vulnerable position. The Court took into account that P. was “a foreign national, charged with serious offences under an unfamiliar legal system in an unfamiliar language”. The Court also noted that 1st, 3rd and 4th respondents were aware that P had been in Germany but had not disclosed it to her lawyer or gave her an opportunity to respond.
The Court identified that the substantive issue was the delay in the process of identifying a victim of trafficking of human beings. The process for P. went on for two years when such issues are meant to be determined swiftly according to Article 11(4) of the Directive, which requires the State to put in place “appropriate mechanisms” for the early identification of victims. The Court also pointed out difficulties of the mechanisms used to identify the victims. Among these was the onus of proof; a person claiming to be a victim of human trafficking is not under the onus to prove it. Another difficulty was the undue focus on the veracity of the victims, potentially at the expense of focus on the investigation of the serious crime of human trafficking. With regard to this point the Court noted that victims of trafficking may not necessarily see themselves as such and may not wish to cooperate with the authorities. In accordance with international consensus “as reflected in the Directive”, a person should be identified as a “suspected victim” if there are reasonable-grounds indicators to that effect.
Finally, the Court suggested that the mechanism used in cases such as P.’s could not be considered “appropriate” unless it dealt directly with “the interaction between the application for recognition and the criminal investigation into the applicant’s alleged activities”. It was emphasised that the requirement of the State under Article 11(2) of the Directive is to provide assistance and support “as soon as there are reasonable-grounds indications for believing that a person might have been subjected” to trafficking, and that States must “take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [an offence of human trafficking]”. It should be noted, however, that even if the application for recognition is successful, “the person concerned does not gain any automatic right not to be prosecuted or to be granted bail in the event of prosecution,” but that his or her position in relation to such issues would improve significantly. As such, regardless of the conclusion of this case, P. will remain in custody, pending further review.
The Court noted that in terms of the procedural issues, “there is a necessity for rules or protocols, if not legislation, establishing what is to be done in circumstances where the person claiming to be a victim is also suspected of criminal activity”. It also made a point to say, however, that the State has done an impressive amount of work dealing with the issue of human trafficking, and that the Court saw no reason to suspect the first named respondent of any bad faith in his handling of the matter. Overall, the structural and procedural shortcomings of the mechanisms of identifying victims of human trafficking was emphasised, and that in light of these findings, the Court proposed that the parties address the Court further on the issue of an appropriate remedy in the circumstances regarding P.THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
DIRECTIVE 2011/36/EU
THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION
THE CONSTITUTION OF IRELANDHigh Court of Ireland
